Problematic Left Arguments Against the PPACA II: Legal Division

I didn’t notice this until I saw the link via our resident Paul-curious troll, but bmaz had an uncharacteristically weak argument that liberals should learn to like a Supreme Court decision striking down the ACA that I missed at the time.

As for the quasi-defense of the libertarian argument on its merits, the idea that requiring health care free riders to pay a tax penalty reflects an Awesome New Federal Power is absurd.  And the idea that there’s no “limiting principle” if the PPACA is upheld is also wrong, as is the idea that striking down the PPACA is likely to result in a better health care policy.   And in a way it’s even more unprincipled and incoherent coming from the left; at least when conservatives assure us Scout’s honor that they would uphold a more coercive health care policy if Congress could pass it, they’re being disingenuous.    But I’ve made this argument at length elsewhere, so I won’t repeat it here.

But what interests me about the post is the liberal variant of the “leave John Roberts alllooooonnnneeeeee!” arguments we’ve been getting from various Republican hacks:

And, as David Bernstein pointed out, why in the world would the left undermine the Court’s legitimacy when it is one Presidential appointment away from taking over the ideological majority? No kidding. I respectfully urge my colleagues on the left to step back, take a breath of air, and rethink the idea of degrading the Court over this case.

• In general, I completely reject the underlying premise that we anyone should be reluctant to criticize the Court or that the Court is entitled to some fixed level of legitimacy regardless of what it does.
• Leaving aside the fact that liberal criticism for better or worse won’t undermine the legitimacy of the court in any meaningful sense, the Bernstein argument cuts both ways.  If Mitt Romney wins, the median vote on the Court will almost certainly be to the right of Antonin Scalia before he leaves office.   Does a maximally powerful Supreme Court sound attractive them?  Should liberals refrain from any criticism lest this “degrade” the Court for a hypothetical future liberal majority?
• But even if we assume that Obama wins re-eleciton and we end up with a liberal-ish median vote on the Court, so what?   We’re entering our 5th decade of a Supreme Court with a Republican median vote, and yet assertions that liberal judicial activists are destroying the country remain a reliable staple of Republican political discourse.   Anybody who thinks that they’ll be more willing to accept the jurisprudence of an actually liberal Supreme Court if only Democrats pull their punches in criticizing an awful decision striking down the PPACA is living in a land of fantasia.   Nor is any future liberal Supreme Court justice going to be affected by criticism of a decision that they almost certainly will also disagree with.   Nor, as bmaz concedes elsewhere, will this actually reduce judicial power.   So why shouldn’t liberals criticize an outrageous decision striking down the centerpiece legislation of an incumbent administration on ludicrously trivial grounds?

Of course, I don’t think that bmaz actually believes Berenstein’s arguments about “degrading” the Court either; the concern is outcome-oriented.   If the Supreme Court was poised to strike down a single-payer system bmaz would be first in line to attack them (although such an argument would be if anything more coherent than an ad hoc argument specifically targeted at the PPACA.)   That the PPACA is suboptimal policy, however, doesn’t make the Supreme Court striking it down any less indefensible.